Commission moves closer to allowing commercial casino bids in region

The state Gaming Commission took another step toward opening southeastern Massachusetts to commercial casino applications, but once again delayed a decision — although, several commissioners voiced strong support for ending the Mashpee Wampanoag tribe’s regional exclusivity.

The state Gaming Commission took another step toward opening southeastern Massachusetts to commercial casino applications, but once again delayed a decision — although, several commissioners voiced strong support for ending the Mashpee Wampanoag tribe’s regional exclusivity.

“I am prepared to vote ‘yea’ today,” Commissioner Jim McHugh said Thursday, with Enrique Zuniga and Chairman Stephen Crosby echoing the call for commercial entities to be allowed to bid on a casino license in southeastern Massachusetts, or Region C.

After commissioners Gayle Cameron and Bruce Stebbins voiced some hesitation, the panel decided to seek public comments on what was discussed Thursday and return in two weeks to vote.

“It will take some powerful comments to change my mind,” McHugh said.

The Mashpee hope to build a tribal casino in Taunton and are currently going through a federal approval process outside of the state gambling licensure process.

The state gambling law allows for up to three commercial casinos in each of three regions of Massachusetts. In Region C, however, the Mashpee were given a window of exclusivity to make progress toward a tribal casino.

While the tribe, which is currently without an approved reservation upon which to build a casino, says it is on track to have land taken into trust by the federal government for that purpose, many have voiced concern in recent months that the tribe is destined to hit a cul-de-sac in its pursuit of sovereign land, potentially keeping Region C without the anticipated economic boost of a casino.

Pointing to language in the recently signed tribal gambling compact, Attorney Howard Cooper, who represents the Mashpee Wampanoag, said the Gaming Commission has no authority to allow commercial competition in Region C at the present time.

“To me, there was an astonishing lack of discussion about the rights of a federally recognized Native American tribe,” Cooper said when reached by phone. “We’re very confident that the Gaming Commission must abide by state law and even more confident that the tribe is on a very expedited track to get land in trust and enjoy benefits that will flow from that.”

McHugh, a retired judge, said that while the state law essentially requires the commission to solicit commercial bids if it determines the Mashpee won’t get land in trust, there is nothing in the language that prohibits the commission from allowing commercial applicants in at this point. The language differs slightly between the compact and the Expanded Gaming Act.

The Mashpee and Gov. Deval Patrick’s office last month reached a new compact to govern the terms of the proposed tribal casino in Taunton. It includes a revenue sharing agreement calling for the tribe to pay 15 to 21 percent of casino revenue to the state, but the state’s revenue share would drop to zero if another casino ever opens in Region C, which includes Bristol and Plymouth counties, Cape Cod and the Islands.

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If the compact is approved, the Gaming Commission licenses a commercial casino in Region C and the Mashpee get land in trust, “the loser here will be the Commonwealth of Massachusetts, who will get nothing,” Cooper said.

The compact is subject to the approval of the state Legislature and the U.S. Department of the Interior. Without a compact the Mashpee could still open a Class II facility, which would be similar to a slots parlor, if they get land in trust.

An attorney who represented the city of Taunton throughout its negotiations with the Mashpee Wampanoag tribe submitted an April 1 letter to the Gaming Commission urging that commercial applicants remain frozen out of the region.

“Assuming that the compact is approved by the Legislature, we believe that unless the commission has determined that the tribe will not have land taken into trust by the U.S. Secretary of the Interior, the commission would be subjecting itself to a substantial likelihood of litigation by the tribe for breaching the terms of the compact and proceeding in violation of the act,” Attorney Cezar Froelich wrote.

The Supreme Court’s 2009 decision on Carcieri v. Salazar has significantly clouded the land sovereignty issue. The court ruling suggests that the federal government doesn’t have the authority to take land in trust for a tribe not under federal jurisdiction in 1934, when the Indian Reorganization Act was adopted.

The Mashpee weren’t federally recognized until 2007, but say they were under federal jurisdiction long before 1934.

Several Gaming Commission members noted Thursday that allowing commercial entities to apply for a casino license in Region C wouldn’t prevent the tribe from continuing to pursue a land-in-trust determination.

“If we open it up to commercial licenses, one of the options we will continue to consider is the tribal option,” Crosby said.

Before actually issuing a license, the commission said it would analyze what would provide the best economic benefit to the state.